There’s nothing like a bit of courtroom tension and theatrical advocacy. Many TV dramas, films and written works have relied heavily on this subject matter. American author and former attorney John Grisham has earned millions from his fictional accounts of high-stakes litigation, and many lawyers and attorneys have chosen a career in law on that very premise, to sate their natural instinct to fight and defeat the opposition.
So if litigation is for the accomplished and confident, is it a sign of weakness to propose a mediation? Is a departure from a ‘see you in court’ mentality a demonstration of frailty?
For some this remains true, but nearly 15 years on from the introduction of the Civil Procedure Rules (CPR) in England and Wales, cynical attitudes towards mediation have waned, as has the general reluctance to initiate it.
Mediation has become so entrenched in the dispute resolution fabric that disputants and their lawyers now expect it to be offered and don’t regard it as the approach of the likely loser.
For many, even a mediation that does not result in a settlement can still add to clients’ understanding of their and their adversary’s case. One leading mediation lawyer in the UK says that proposing mediation is a robust way of taking the initiative: ‘If you have a strong case you say “look we want to speak with you at the earliest stage to show you the strength of our case and we think that a mediation is a good forum for us to be as frank as we can and allow an open and safe environment for dialogue around settlement on best terms before costs escalate”.’
The lawyer says that the CPR provides a perfect reference point to initiate a mediation, because the courts encourage parties to seek early resolution: ‘You can reserve the right to put this proposal before the court if the other side unreasonably refuses to engage in the process’.
Established dispute resolution lawyers, many of which are under pressure from clients and the courts to keep their costs in check, recognise that initiating mediation is an established strategy. In Halsey v Milton Keynes General NHS Trust, the court held that failure to participate in ADR could result in the court imposing costs sanctions.
So under these circumstances, could the offer of mediation really be seen as a weakness? Ian Gatt QC, a founding member of Herbert Smith Freehills’ advocacy unit and an accredited mediator, says that experienced litigators and dispute resolution specialists will never expect to see holes in the opponent’s case just because they have offered mediation. ‘The [CPR] reforms require you to consider mediation. There is an expectation now. If you don’t mention it to the other side, then you are not really up to speed with what you are supposed to be doing,’ he explains.
‘I am perfectly happy to propose it. We have a reputation for being proactive in this area, so there is less of a risk of it being perceived as a weakness. We are known for our stance on ADR and so it’s not surprising for a proposal to come from a firm like ours that has a strong reputation for dispute resolution.’
In many cases such as a shareholder quarrel or a joint-venture dispute, there are compelling practical reasons for proposing an early mediation so that the parties might get back on track with their commercial priorities. In these circumstances, Gatt likes to consider what his interpretation would be if the boot was on the other foot: ‘What would I think if the other side proposed mediation? I would think they are doing the sensible thing and clearly it is in the client’s interest. We should get on and chew it through.’
Clearly this course of action may not provide the hard-hitting and no quarter given substance for a Grisham model, but when mediation is proposed, its certainly no longer regarded as a strategy for the meek. It is an approach that prevents views from becoming entrenched, parties’ rights becoming polarised, and most of all it can stop lawyers from taking positional stances.
This post was written by Chris Crowe who is a freelance journalist. He can be contacted at email@example.com